Brazilian Supreme Court ruling protects Quilombola land rights for now

Brazil’s Supreme Court has soundly rejected a lawsuit filed in 2003 by a right wing political party that would have drastically limit the ability of quilombolas (former slave communities) to legitimize claims to their traditional lands.

There are 2,962 quilombolas in Brazil today, but just 219 have land titles, while 1,673 are pursuing the process of acquiring legal title. Titled quilombola territories include 767,596 hectares (1.9 million acres); these settlements have a good record of protecting their forests. Brazil’s total quilombola population includes some 16 million people.

While advocates for quilombola rights cheered the Supreme Court decision, major threats to the communities loom: successive administrations have drastically slashed the budget for titling quilombola lands, almost completely stalling the demarcation process. Also, a constitutional amendment, PEC 215 is moving through Brazil’s Congress.

PEC 215 would shift authority from the Executive branch to Congress for giving out land titles to quilombolas, recognizing indigenous claims to ancestral lands, and creating protected areas. With Congress dominated by the ruralist caucus and agribusiness, PEC 215 threatens Brazilian forests and indigenous and traditional communities.

Children dancing at a quilombola. There are nearly 3,000 quilombola communities in Brazil, but only 219 have received legal title of their lands from the Brazilian government. Photo courtesy of ISA

After long consideration, Brazil’s Supreme Court (STF) ruled on 8 February by an overwhelming majority to reject a legal action initiated in 2003 by a right-wing political party to declare invalid a presidential decree (Decreto 4.887/2003), passed by President Lula in the same year. The action, had it succeeded, would have made it much harder for quilombolas (communities of former slaves) to gain rights to their traditional land claims and could have led to the dismantling of quilombola territories already created.

Ten of the eleven STF ministers voted that Lula’s presidential decree was constitutional, as Quilombola communities and those working with them breathed a collective sigh of relief. The NGO Socioenvironmental Institute (ISA) called it “an important defeat” of “the Temer government, the rural caucuses (bancada ruralista) and the National Confederation of industry [a powerful business lobby].”

The case has been in limbo since 2015. A ruling was scheduled three times last year but postponed each time. In April 2017, the Temer administration suspended all new land demarcations until a ruling was made, which was seen as a clear message that his government endorsed the legal action.

Quilombola community members celebrate the Brazilian Supreme Court decision. Photo by Carlos Moura

Demildo Biko Rodrigues, from the National Coordination of Rural Black Communities (CONAQ), told BBC Brasil that “the Brazilian state has taken a step forward in the process of redressing everything that has happened to our people.” He was pleased but surprised by overwhelming majority decision by the STF, “given the dark times in which we live.”

The Liberal Front Party (PFL), which changed its name to the Democrats Party (DEM) in 2007, originally filed the suit. The party wanted to overturn a presidential decree, issued by President Luiz Inácio Lula da Silva in 2003 that gave the Executive the authority to establish the procedure for creating quilombola territories. Since then, INCRA (The National institute of Colonization and Agrarian Reform), an independent federal body, has been responsible for giving titles to quilombos and marking out their boundaries.

If successful, the DEM’s suit would have transferred this power to Congress, where the right-wing rural caucus is very strong. Rodrigo Oliveira, an adviser to the Public Federal Ministry (MPF), an independent body of federal prosecutors, told Mongabay that if the STF ruling had gone the other way, “even quilombola land that had already been titled would have been at risk.” Put simply, if the STF had favored the suit, land titles already received by 219 quilombola territories from INCRA could have been cancelled, depriving 17,000 Brazilian families of their lands, making them vulnerable to eviction by land thieves.

Brazilian forest, too, would have likely suffered. Ricardo Folhes, from the Federal University of Pará, said: “The quilombola territories are among the country’s best-preserved land, like indigenous territory and protected areas. If the judgement had gone against them, it could have meant another 800,00 hectares of forest at risk.”

According to a variety of sources, including INCRA, Repórter Brasil, and Comissão Pro-Índio, the number of quilombola communities in Brazil today stands at almost 3,000, but just 219 have land titles, while 1,673 are pursuing the process of acquiring titles. The quilombola population on titled and non-titled land totals some 16 million Brazilians.

French painter Jean-Baptiste Debret (1768-1848) was one of the few artists to portray the cruel reality of slavery in Brazil. That reality caused runaway slaves to hide in remote forests and avoid any association with government. Image courtesy of Wikipedia

When is a quilombola a quilombola?

The Supreme Court, while confirming the constitutionality of the decree, also had the power to introduce significant changes to it. Here there was more dissent among the ministers.

In particular, the quilombolas had feared that the court would introduce a much tougher, more limited legal definition of a quilombola community. Such settlements had typically been defined as being “set up by runaway slaves,” but in recent decades, following the 1988 Constitution and the advice of the Brazilian Association of Anthropology (ABA), authorities had adopted a broader definition, characterizing quilombolas as black communities “that have developed practices of resistance for the maintenance and reproduction of their characteristic way of life.”

The 2003 DEM legal action, had it been approved, would likely have ended “self-identification,” by which a community can decide for itself whether or not it is a quilombola. Arguing that this process allowed widespread fraud, the DEM and rural caucus maintained that the community should only be able to call itself a quilombola if it had the backing of historical documents, proving its founding by runaway slaves.

Anthropologists point out that such a narrow definition would exclude many legitimate quilombolas. Brazil only ended slavery in 1888, by which time roughly four million had been transported from Africa. Many runaways, fearing recapture, lived in remote areas, so didn’t find out slavery had been abolished until many years after emancipation. They were also extremely reluctant to have any government contact, meaning that their settlements lacked official records.

The quilombolas — communities of descendants of runaway slaves — are fiercely proud of their African culture and tradition. Photo by Antônio Cruz / Agencia Brasil

The family of Josefa Bezerra de Matos, president of the Association of Quilombolas and their Descendants in Mundo Novo, a hamlet in the interior of Pernambuco state, is a case in point. She said: “My father and grandfather didn’t want documents, because they were frightened of them. As children, we were brought up to be fearful of white people. My father only got himself [a legally obligatory Brazilian] identity card at the end of his life.”

Josefa has just one small photo of her grandfather, who was born a slave and ran away to gain his freedom. Josefa keeps this photo, taken when her grandfather was more than 100-years-old, in a matchbox which she carries everywhere. “I’m sure he protects us and looks out for us,” she said. “And he helps us when we have to talk to authority.”

In the end, the Supreme Court decided by a comfortable majority that “self-identification” of quilombolas is permissible.

Traditional inhabitants in the Quilombola of Paracatu in Minas Gerais state. Inhabitants of these former slave communities are known for preserving forests on their claimed lands. Photo courtesy of Wikipedia

Threats to quilombolas still loom

In its suit, the DEM also sought to impose a marco temporal, a timeframe requiring that those claiming title would have to prove they were occupying the land when Brazil’s new constitution was approved in 1988, unless they could demonstrate that they had been thrown off their land by “illicit acts.”

Edson Fachin, an STF minister, said that many communities would have difficulty proving pre-1988 occupation, given that “quilombolas were absolutely invisible until very recently.” This was the position taken by most of his colleagues, though several voted against.

Times have changed since 2003, when the DEM launched its suit. Quilombolas have become far more visible and political, and enjoy considerable popular support. Approval of the DEM’s legal action might well have provoked widespread public protests. Many in the rural caucus understood this shift in public opinion, and thought it warranted a change in tactics. The current DEM president, José Agripino Maia, told BBC Brasil that the party had changed its mind regarding the 2003 suit and believed it to have been “a mistake” to launch it. However, as the case was already in process, it was not possible to withdraw it.

Although clearly delighted by the STF decision, Demildo Biko Rodriges sees the ruling as only “a first step,” to protecting the former slave communities, as “there is still a long road ahead before we achieve our rights.” Despite last week’s success, analysts agree that the future for quilombolas looks perilous.

INCRA’s budget has been slashed in recent years, with funding to provide quilombola land titles falling from R$64 million (US$19.4 million) in 2010, to R$4 million (US$1.2 million) in 2017. Demildo Biko Rodigues said that the communities’ key challenge now is “to dialogue with the [Temer administration] so that more resources can be found to accelerate the demarcation process.”

Lúcia M.M.Andrade, executive coordinator of the Comissão Pro-Índio in São Paulo, who has worked with quilombola communities for almost 30 years, said that the lack of resources is a huge problem. “It means that INCRA won’t be able to push ahead with the more than 1,500 requests for land title,” she said. “Of these, INCRA has not yet carried out the first phase – the identification of territory report (RTID) – for 84 percent of them. So there is little chance of changing the current situation in which just 9 percent have titles to their land.”

A further danger looms. For 17 years the rural lobby has pressed for passage of a sweeping constitutional amendment – PEC 215. If approved, it would shift from the Executive branch to the Congress the authority for giving out land titles to quilombolas, recognizing indigenous lands, and creating protected areas. Given the power wielded in Congress by land-hungry rural elites and agribusiness, passage of the amendment would likely deal an enormous blow to environmentalists, social movements and NGOs — not to mention Brazil’s biodiversity and forests.

According to many experts, risk of the passage of PEC 215 by Congress grows by the day.

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The future of these children, and others living in quilombola communities across Brazil, may depend on whether tor not the Brazilian Congress passes PEC 215. If approved, the amendment would shift from the Executive branch to the Congress the authority for giving out land titles to quilombolas, recognizing indigenous lands, and creating protected areas. Photo by Carol Gayao under the Creative Commons Attribution-Share Alike 3.0 Unported license